Does CHL ban in churches violate the First Amendment?

An opinion released today by the Arkansas Attorney General says “no.” Like most states, Arkansas allows adults to obtain a permit to carry a concealed handgun for lawful purposes, after passing a background check and safety class. Like a few states, Arkansas prohibits licensed carry in “Any church or other place of worship.”

In short, the AG opinion says that there is no Free Exercise violation because the statute does not (at least facially) hinder the exercise of religion. Further, the statute is one of general applicability, and does not single out religion for different treatment, because the Arkansas conceald handgun license (CHL) statute also bans CHL in some other locations. The opinon suggests that what these disparate places have in common is that they are likely to be crowded.

There is no Establishment Clause violation because the CHL in churches ban does not appear, facially, to favor one sect or denomination over another. (The AG opinion and this post both use “churches” to include synagogues, mosques, and all other houses of worship of various religions.)

The AG opinion strongly emphasizes that the issue is one of first impression, and that a full legal resolution of the issue might well require fact-finding. The purpose of an Attorney General opinion is only facial review, and not the kind of fact-finding that a court might engage in.

Given the self-declared limited scope of the AG opinion, its tentative legal conclusions are plausible. However, I think that if we broaden our view a little bit–in either a court of law, or the court of public opinion–there do appear to be some potential violations of the Establishment and Free Exercise clauses.

Two preliminary caveats: First, neither the AG opinion nor this post address whether the church ban violates the right to arms clause of the Arkansas Constitution, or the Second Amendment. I expect that an argument on right to arms grounds would probably involve the rights of almost any landowner to choose to allow licensed carry on his/her/its property; the argument would not be specific to churches as landowners.

Second, as demonstrated by litigation in Minnesota, some churches consider it an intolerable burden on their free exercise of religion if, in order to exclude licensed gun owners, they must post a “no guns” sign similar to signs that ordinary businesses in the state routinely post in order to exclude licensed carry. I presume that a way can be found to accomodate their twin desires for “no guns” and “no signs” and that this accomodation does not require banning guns from churches that want to allow carry. For example, a statute could presumptively ban guns at churches, and then allow individual churches to opt out by posting a “licensed gun owners are welcome” sign. Or a church could be allowed to authorize carry by specific persons who received a letter of authorization from the church.

One test for Free Exercise violations involves whether the statute imposes a significant burden on the free exercise of religion, even if the legislature had no malign intent to create a burden. A complete ban on CHL at churches, even at churches which strongly desire licensed carry on their premises, does burden free exercise. Churches, by their very nature as religious institutions, are more likely to be the targets of attacks by persons motivated by religious hatred. If the law prevents congregations from protecting themselves, then the state government is making church-goers defenseless at precisely the time when they are especially likely to be attacked by a criminal acting out of religious hatred. In my forthcoming Connecticut Law Review article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, I describe the case of a December 2007 attack on a church in Colorado Springs by a person who earlier that day had murdered people at a Christian youth group. Dozens of lives were saved because one of the parishioners at that the New Life Church, Jeanne Assam, was using her Colorado CHL to lawfully serve as a volunteer security guard at the church that Sunday.

Obviously not all churches have the same beliefs about the legitimacy of self-defense and defense of others as does the New Life Church. This brings use to the second violation of the First Amendment. The morality of using deadly force when necessary to protect innocent lives is a strongly debated topic among various denominations. The early Christians disagreed on the topic. Historically, the standard Jewish and Catholic view was that self-defense was a right and defense of others was often a duty. Some Christians, particularly since the 20th century, take an opposite view. Likewise, many adherents of the major religions of Asia also support self-defense, while some (especially some Therevada Buddhists) do not. These doctrinal differences about self-defense represent very important, sincerely-held differences in religious beliefs. A religion is, after all, not just about the forms of ritual; religion is especially concerned about providing guidance for moral conduct at moments when a person may face decisions involving the end of life.

The state, of course, must be neutral between the various religious beliefs. The state should not compel a Quaker to shoot someone who is trying to kill her, nor should the state forbid a Baptist from saving her own life. The CHL prohibition in churches violates the Free Exercise clause because it prevents self-defense by members of a religious community, when they are gathered as a community, even if key tenet of the religion is the communal duty of the adherents to protect their fellow adherents.

Moreover, the CHL ban also violates the Establishment clause because it favors some denominations over others. In effect, the statute privileges pacifist denominations over non-pacifist ones, by forcing the non-pacifist religions to obey pacifist standards of conduct in their own houses of worship. This is not only a Free Exercise violation, it is an Establishment clause violation, because it plainly creates the message that the pacifist way of being is the only way of being which the state will allow in any church, anywhere in the boundaries of the state.

Establishment clause jurisprudence pays attention to the audience and context of the various messages that the government sends. A government message which is directed, for example, at tax accountants, may be less likely to be construed by the audience as an endorsement of a particular religion than that same message would be if delivered by a public school principal to a class of first graders. Churches are quintessential places for family activity; if children know (as many do) that their parents carry handguns lawfully in many places on Monday through Saturday, and on Sunday afternoon, and that the government forbids the parents from carrying the licensed, concealed handguns on Sunday morning at church, then some of those children may perceive a government message expressing an incompatibility between self-defense and religion. The de facto result is government favoritism of pacifist religion over non-pacifist.

None of the above analysis depends in any way on a finding of an expressed desire of legislators to favor pacifism over non-pacifism. First Amendment religion jurisprudence is not limited to a search for bad motives. A statute can violate the Free Exercise or Establishment clause solely because of its effects, including effects that legislators may not have considered or foreseen.

Of course the above analysis is just a sketch of an argument. Law journal students who are interested in the interplay of First and Second Amendment rights might find the issue to be a good topic for a Note.

Update: In response to various thoughtful comments…Yes, if you apply Employment Division v. Smith the way that the Attorney General did, this would defeat a Free Exercise claim. I suggest that such an application of Smith is not necessarily mandatory. Smith says that if you ban peyote (or defensive handgun-carrying) everywhere, then the general ban can apply in churches, without violating Free Exercise. Even if the ban is an essential part of a religious ceremony (peyote) or a matter of life and death for religious people who are at heightened risk of hate crimes (my argument above). This would be Smith applied to Illinois, where handgun carry in general is prohibited (with certain exceptions), and there is no statutory provision to even issue a CHL.

Arkansas is, I suggest, different. It allows CHL in general, and selects churches as part of a small group of places where CHL is prohibited. Pursuant to Arkansas Code Annotated section 5-73-306, the only places (other than government property) where CHL is banned notwithstanding the wishes of the property owner, are churches, bars, sporting events, and religious or independent schools or colleges. The Attorney General suggests that these are all tied togethether by the common characteristic of being likely to be crowded. If crowdedness is the rationale, the list is both under-inclusive and over-inclusive. Accordingly, it appears that at least some further analysis would be required before rejecting a Free Exercise claim. In addition, not all states have adopted Smith’s restrictive test for their own state constitution’s Free Exercise jurisprudence, but that’s a separate issue.